K. SRINIVASALU Vs. MASTER YESHAS

JUDGEMENT

(1.) HEARD the learned counsel for the appellant. The appellant was the defendant before the Trial Court in a suit for ejectment. The suit has been decreed. The defence set up by the present appellant who was the defendant was that he also had a claim in the suit property by inheritance and in this regard, there was an additional issue framed by the court below as on 2 -1 -2009. However, it is pointed out by the learned counsel for the appellant that the additional issue framed has not been answered by the court below. This apparently is correct.

(2.) HOWEVER , the learned counsel for the respondent would point out that the claim of the defendant has been considered at length even otherwise, and this is apparent from the findings on Issue No. 2, which would cover the claim of the defendant, as sought to be made out and it would be wholly unnecessary for this court to consider remanding the matter on the ground that additional issue has not been considered as proposed, by the learned counsel for the appellant. This court in its discretion, is well within its jurisdiction to consider the facts of the case as evident from the record and even to decide the additional issue that is framed. In this regard, he places reliance on a decision of the Apex Court in the case of Patel Sureshbhai Jashbhai Vs. Patel Satabhai Mathurbhai, AIR 1983 SC 648 , wherein in a matter arising under the Bombay Tenancy and Agricultural Lands Act, 1948, where purchase of land by a person seeking to be a tenant became ineffective for his non -appearance before the Tribunal in response to the notice issued under the provisions of the said Act, but having regard to the findings on fact that he was a tenant and hence, the purchase price was to be determined, the Supreme Court having held that when there was sufficient material existing on record, the court should decide the matter and give adequate direction instead of remitting the case to the Lower Court or Tribunal, cannot be imported into the present proceedings which is a statutory appeal filed against a judgment and decree in a formal suit. Further, when the Code of Civil Procedure, 1908 prescribes that all issues framed by the court below are to be answered, it is necessary for this court to address the question whether the court has arrived at the findings with reference to the record and with reference to the facts and circumstances. Therefore, it is necessary for the Trial Court to express its finding on the additional issue as well, even though the court may have already indicated its opinion even with regard to the additional issue as framed. It is a formality that has to be gone through notwithstanding that it remains a formality, in the present circumstances. Consequently, the matter is remanded for the limited purpose of the court below answering the additional issue. Hence, as a matter of form, the judgment is set aside and the Trial Court is directed to give its finding on the additional issue as well and unless the entire decision should take a different turn, it would be open for the court to reiterate its earlier findings and give its finding on the additional issue as well. With that observation, the appeal stands allowed. Having regard to the fact that the matter is of some vintage, the court below is directed to expedite the consideration, as it is a mere formality that is required to be complied with, which may not require the parties to be heard, as they have already been heard on the additional issue and evidence has also been tendered. Therefore, the court shall expedite and render its judgment, in accordance with law, at the earliest. The court fee paid shall be refunded to the appellant.